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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
www.johnwesleyhall.com© 2003-20,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. about 30,000 posts since 2003~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and linksLatest Slip Opinions:
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To search Search and Seizure on Lexis.com $Research Links:
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Federal Law Enforcement Training Center Resources
FBI Domestic Investigations and Operations Guide (2008) (pdf)
DEA Agents Manual (2002) (download)
DOJ Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy Foundation
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NACDL’s Domestic Drone Information Center
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Criminal Appeal (post-conviction) (9th Cir.)
Section 1983 Blog"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's))."Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984)."The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961)."Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987)."There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting)."The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring)."A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Nexus
S.D.Ohio: Nexus shown between Facebook account and offense, despite 19 paragraphs of boilerplate
The government showed nexus between defendant’s Facebook account and the crime under investigation to justify the warrant, despite 19 paragraphs of boilerplate. United States v. Mize, 2020 U.S. Dist. LEXIS 166759 (S.D. Ohio Sept. 11, 2020):
OH2: Conduct two days before seeing defendant on street justified stop
The officer’s conclusion that the car associated with defendant had fled from him two days earlier had support in the record, and there was reasonable suspicion for the stop. State v. Stanton, 2020-Ohio-4087, 2020 Ohio App. LEXIS 2978 (2d Dist. … Continue reading
CA3: FBI notice of being “armed and dangerous” justified stop and furtive movement a frisk
“Here, McKee testified that the FBI notice describing Robinson stated that he was armed and dangerous. McKee also testified that Robinson failed to comply with his first order to put his hands up and kept reaching for his waistband. These … Continue reading
CA6: Lack of minimal nexus is lack of PC and no GFE
The district court held the affidavit for drugs in defendant’s house was lacking nexus and probable cause for lack of good information and the good faith exception didn’t apply. Affirmed. United States v. Ward, 2020 U.S. App. LEXIS 23607 (6th … Continue reading
PA: State waived challenge to def’s reliance on state constitution
The state waived its challenge to the defendant’s reliance on the state constitution by failure to litigate it below. Waiver claims have to be applied evenhandedly between the state and defendants. Commonwealth v. Wolfel, 2020 Pa. LEXIS 3797 (July 21, … Continue reading
NY2: Arrest for burglary justifies SI of backpack
Defendant’s arrest for burglary, a violent crime, and his uncooperativeness justified a search incident of his backpack for possible weapons. People v. Mabry, 2020 NY Slip Op 03540, 2020 N.Y. App. Div. LEXIS 3583 (2d Dept. June 24, 2020). There … Continue reading
W.D.Tenn.: Affidavit was conclusory as to drugs at drug dealer’s home [but it’s easy to fix next time]
The affidavit for search warrant failed to show nexus between defendant’s alleged drug dealing a month earlier and his residence. “The only information included in the affidavit to support this conclusory belief is the fact that Defendant, who happens to … Continue reading
GA: Trash search here didn’t provide nexus to def’s house
Because the time and manner of the placement of the trash here presented no factual confidence that the trash came solely from defendant’s house, the trial court was permitted here to conclude that the trash came from more than one … Continue reading
E.D.Pa.: FIPF is continuing offense and reasonable inference is firearm would be kept at home
Felon in possession of a firearm is a continuing offense, and it’s reasonable to infer defendant would keep the firearm he was suspected of having in his home. That’s sufficient for nexus. United States v. Golden, 2020 U.S. Dist. LEXIS … Continue reading
CA6: Alleged lack of nexus in showing of PC saved by GFE
Defendant challenges the lack of nexus of his alleged conduct to the premises, but it doesn’t matter because the good faith exception applies. United States v. Novak, 2020 U.S. App. LEXIS 17133 (6th Cir. May 29, 2020). Inconsistent and implausible … Continue reading
D.N.M.: Violated no REP to open driver door to read VIN where dashboard number obscured
It was reasonable to open a car door to read the VIN on the doorjamb under New York v. Class because the officer couldn’t see the one on the dashboard because of the glare of the sun. Otherwise, there was … Continue reading
IL: Failure to show nexus even by inference of def’s connection to premises in SW was a failure of PC
The state failed to show nexus between defendant and the place to be searched that would show that defendant kept drugs on the premises. “To be sure, a judge issuing a search warrant is entitled to draw reasonable inferences from … Continue reading
CA4: State court suppressed SW for lack of nexus, and then feds indicted; GFE applies to the state warrant
Defendant was prosecuted in state court for a drug related murder, and the state court suppressed the search of his house finding lack of nexus. State v. Miller, 2016 S.C. Unpub. LEXIS 28 (Mar. 30, 2016). Defendant was then prosecuted … Continue reading
N.D.Ill.: Court approves SW for electronic devices believed connected to counterfeiting offenses in SW for home
“The government has presented an application for a warrant to search a townhome for evidence of trafficking in counterfeit United States currency. Among the items identified by the government for search and seizure are electronic devices located in the premises. … Continue reading
CA6: No direct evidence of nexus required where a drug trafficker’s home is ID’d and he operates from there
“In fact, we have even gone so far to determine the existence of ‘a nexus between a defendant’s residence and illegal drug activity with no facts indicating that the defendant was dealing drugs from his residence.’ McCoy, 905 F.3d at … Continue reading
